This is a blog about the use of emerging technologies to boost the governance of public procurement. It used to be a blog on EU law, with a focus on free movement, public procurement and competition law issues (thus the long archive of entries about those topics). I use it to publish my thoughts and to test some ideas. All comments are personal and in no way bind any of the institutions to which I am affiliated and, particularly, the University of Bristol Law School. I hope to spur discussion and look forward to your feedback and participation.

At a general level, reg.55(1) PCR2015 requires contracting authorities to inform each candidate and tenderer shall as soon as possible of decisions reached concerning the conclusion of the tender process. This arises regardless of the reason that brings the procedure to an end, be it positive due to the award of a contract, the conclusion a framework agreement, or the admittance to a dynamic purchasing system; or negative, including any decision not to conclude a framework agreement, not to award a contract for which there has been a call for competition, to recommence the procedure, or not to implement a dynamic purchasing system. These decisions need to indicate the grounds on which they are adopted.

At a particular level and upon request from the candidate or tenderer concerned, reg.55(2) PCR2015 requires contracting authorities to inform as quickly as possible, and in any event within 15 days from receipt of a written request of the specific circumstances concerning their participation in the process. In particular, contracting authorities shall inform: (a) any unsuccessful candidate of the reasons for the rejection of its request to participate; (b) any unsuccessful tenderer of the reasons for the rejection of its tender, including, for the cases referred to in reg.42(14) and (15) PCR2015, the reasons for its decision of non-equivalence or its decision that the works, supplies or services do not meet the performance or functional requirements; (c) any tenderer that has made an admissible tender of the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer or the parties to the framework agreement; and (d) any tenderer that has made an admissible tender of the conduct and progress of negotiations and dialogue with tenderers. In my view, grounds (c) and (d) are particularly problematic because the general logic of allowing candidates and tenderers to access the information they need to assess and, eventually, challenge the decision by the contracting authority affects third party information.

Given the obvious concerns about disclosure of sensitive information (for discussion on confidentiality under reg.21 PCR2015, see here and here), reg.55(3) PCR2015 allows contracting authorities to decide to withhold certain information where its release would impede law enforcement or would otherwise be contrary to the public interest; would prejudice the legitimate commercial interests of a particular economic operator, whether public or private; or might prejudice fair competition between economic operators.

This is an area where Pedro and I are bound to disagree. In my view, there is a need to significantly restrict the information made available to competitors through procurement debriefing processes. I would personally favour a suppression of the excessive level of transparency that is being created in order to rely on private enforcement of EU public procurement rules and to strengthen significantly the public oversight of the procurement function be means of specialised agencies. I have not had time to develop my ideas in full form yet, but this is the core of a paper that I need to write some time soon.

Rules Preventing Excessive Disclosure of Business Secrets and Other Sensitive Information in Protest Debriefings and Review Procedures. A relatively secondary issue to be analysed in relation to bid protest procedures relates to the need to ensure that, while receiving the information necessary to review the decisions of the contracting authority and to defend their rights (particularly within the bid protest or review procedure), tenderers do not have access to information that should remain confidential because it contains business secrets or other sensitive information belonging to its competitors (see art 21 dir 2014/24).[1] In this regard, the risk for a strategic use of bid protest mechanisms seems at least twofold. On the one hand, tenderers could try to gain access to confidential information which could be used later to compete unfairly with the affected tenderers.[2] On the other hand, excessive disclosure of information can increase market transparency and be used as a means to collude or to reinforce collusion by tenderers.[3] Therefore, rules on disclosure of information should take into account their potentially restrictive or distortive effects on competition.[4]

Interestingly, Directive 2014/24 contains a specific rule addressing this issue. Article 55(3) of Directive 2014/24 allows contracting authorities to withhold certain information regarding the contract award, the conclusion of framework agreements or admittance to a dynamic purchasing system, where the release of such information would impede law enforcement or would otherwise be contrary to the public interest, would prejudice the legitimate commercial interests of a particular economic operator, whether public or private, or might prejudice fair competition between economic operators (emphasis added).

Therefore, in the exercise of such discretion and as a mandate of the principle of competition, contracting authorities are bound to restrict the disclosure of information given to tenderers to prevent instances of subsequent unfair competition or collusion—and, in order to do that properly, must identify and properly justify the negative effects which the withholding of the information seeks to avoid.[5]

Along the same lines, and although there is no equivalent provision in Directive 89/665 and Directive 92/13 (both as amended by dir 2007/66), it is submitted that the same restrictions to the disclosure of information apply in bid protests and review procedures, so that contracting authorities (in the case of mandatory reviews prior to challenges, or otherwise) and independent review bodies are bound to prevent disclosures of information that could result in restrictions or distortions of competition.[6] In such cases, limiting the access of information to the minimum extent required to ensure the effective protection of the rights of the applicants in review procedures will require a balancing of interests by the competent authority—which, in my view, should take into due consideration the potential impact on competition of the disclosure of certain information. Such an obligation can be stressed or reinforced by general rules on the treatment of business secrets and other commercially sensitive information of general application according to Member State domestic legislation.

[1] See Case C-450/06 Varec [2008] ECR I-581. In general, on record keeping, debriefing and disclosure of information in public procurement processes, and the necessary balancing of transparency and the interests of firms in preserving the confidentiality of commercial information, see Arrowsmith et al (n 50) 453–57. See also Arrowsmith (n 28) 634–36. It is important to note that basic recommendations by international organisations clearly run against excessive disclosure; OECD (n 148) 19. [2] See: Lipari, I principi di trasparenza e di pubblicità (2005) 265–72. In similar terms, see A Bertron, ‘Conflicts between the Sunshine Law and Trade Secret Protection in Public Procurement’ (2002) 76 Florida Bar Journal 36. [3] Carpineti et al (n 214) 27; and Albano et al (n 51) 352–53. Similarly, Kovacic et al (n 51) 402. See also RA Miller, ‘Economy, Efficiency and Effectiveness in Government Procurement’ (1975–1976) 42 Brooklyn Law Review 208, 215–33. The effect would be particularly clear if the disclosed information referred to prices in specific transactions; see S Albæk et al, ‘Government-Assisted Oligopoly Coordination? A Concrete Case’ (1997) 45 Journal of Industrial Economics 429. [4] For a review of recent cases, see A Sanchez Graells, The Difficult Balance between Transparency and Competition in Public Procurement: Some Recent Trends in the Case Law of the European Courts and a Look at the New Directives (University of Leicester School of Law Research Paper No. 13-11, 2013), available at ssrn.com/abstract=2353005. [5] In this regard, stressing the obligation to give reasons that binds contracting authorities, see Case T-89/07 VIP Car Solutions [2009] ECR II-1403 86–94. [6] See A Sanchez Graells, Three recent cases on EU Institutions' procurement and one common theme: good administration and confidential information (T-498/11, T-91/12 & T-199/12) (2 October 2014), available at howtocrackanut.blogspot.co.uk/2014/10/three-recent-cases-on-eu-institutions.html.